Amicus Curiae Brief — Richard Eugene Glossip, Petitioner v. Oklahoma

No. 22-7466

*CAPITAL CASE*

IN THE

Supreme Court of the United States

______________________

RICHARD EUGENE GLOSSIP,

Petitioner,

v.

STATE OF OKLAHOMA,

Respondent.

______________________

On Petition for a Writ of Certiorari

to the Oklahoma Court of Criminal Appeals

______________________

BRIEF OF NORA FREEMAN ENGSTROM,

BRUCE A. GREEN, PETER A. JOY,

W. BRADLEY WENDEL, RONALD F. WRIGHT,

AND ELLEN C. YAROSHEFSKY AS AMICI

CURIAE IN SUPPORT OF PETITIONER

____________________

BRUCE A. GREEN

150 West 62nd Street

New York, NY 10023

(212) 636-6851

bgreen@law.fordham.edu

MEAGHAN VERGOW

Counsel of Record

JOHN J. LAPIN

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

mvergow@omm.com

KELLY KAMBOURELIS

O’MELVENY & MYERS LLP

400 South Hope Street

18th Floor

Los Angeles, CA 90071

Attorneys for Amici Curiae

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI CURIAE .............................. 1

SUMMARY OF ARGUMENT................................... 1

FACTUAL AND PROCEDURAL

BACKGROUND ............................................. 3

ARGUMENT ............................................................. 8

I.

PROSECUTORS HAVE AN

UNQUALIFIED

CONSTITUTIONAL DUTY TO

CORRECT FALSE TESTIMONY

THAT IS RELEVANT ......................... 8

II.

EROSION OF NAPUE

OBLIGATIONS WOULD

UNDERMINE THE LEGAL

PROFESSION’S ETHICAL

RULES ............................................... 11

III.

THE OCCA DECISION IS AT

ODDS WITH NAPUE AND

WIDENS CONFUSION IN THE

LOWER COURTS .............................. 15

CONCLUSION ........................................................ 19

APPENDIX A: List of Amici Curiae ....................... 1a

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Berger v. United States,

295 U.S. 78 (1935) ............................................... 13

Birano v. State,

426 P.3d 387 (Haw. 2018) ................................... 16

Brady v. Maryland,

373 U.S. 83 (1963) ................................................. 5

Browning v. Trammell,

717 F.3d 1092 (10th Cir. 2013)............................. 7

Carter v. Mitchell,

443 F.3d 517 (6th Cir. 2006)............................... 17

Cone v. Bell,

556 U.S. 449 (2009) ............................................. 12

Dow v. Virga,

729 F.3d 1041 (9th Cir. 2013)............................. 16

Gilday v. Callahan,

59 F.3d 257 (1st Cir. 1995) ................................. 17

Gomez v. Comm’r of Correction,

243 A.3d 1163 (Conn. 2020) ............................... 16

Hayes v. Brown,

399 F.3d 972 (9th Cir. 2005)............................... 16

Jenkins v. Artuz,

294 F.3d 284 (2d Cir. 2002) ................................ 17

Jones v. Barnes,

463 U.S. 745 (1983) ............................................. 14

iii

TABLE OF AUTHORITIES

(cont’d)

Page(s)

Kyles v. Whitley,

514 U.S. 419 (1995) ....................................... 10, 16

Long v. Pfister,

874 F.3d 544 (7th Cir. 2017)............................... 17

Matter of Kutzrock,

192 A.D.3d 197 (N.Y. App. Div. 2020)................ 14

Mooney v. Holohan,

294 U.S. 103 (1935) ............................................... 8

Napue v. Illinois,

360 U.S. 264 (1959) ..........................8, 9, 10, 11, 13

Nix v. Whiteside,

475 U.S. 157 (1986) ............................................. 13

People v. Wiese,

389 N.W.2d 866 (Mich. 1986) ............................. 16

State ex rel. Okla. Bar Ass’n v. Ward,

353 P.3d 509 (Okla. 2015) .................................. 14

Strickland v. Washington,

466 U.S. 668 (1984) ............................................. 14

United States v. Agurs,

427 U.S. 97 (1976) ......................................... 10, 16

United States v. Bagley,

473 U.S. 667 (1985) ................................. 10, 11, 16

United States v. Butler,

955 F.3d 1052 (D.C. Cir. 2020) ........................... 17

iv

TABLE OF AUTHORITIES

(cont’d)

Page(s)

United States v. Foster,

874 F.2d 491 (8th Cir. 1988)............................... 15

United States v. Young,

470 U.S. 1 (1985) ................................................. 13

Young v. United States,

315 U.S. 257 (1942) ............................................... 6

Other Authorities

ABA Criminal Justice Standards for the

Prosecution Function, Standards 31.4(a) (4th ed. 2017) ............................................ 13

ABA Model Rule of Professional

Conduct 3.3(a)(1)................................................. 12

ABA Model Rule of Professional

Conduct 3.8(d) ..................................................... 14

ABA Standing Comm. on Ethics & Prof’l

Resp., Formal Op. 09-455 (2009) ........................ 14

Martin Marcus,

The Making of the ABA Criminal Justice

Standards: Forty Years of Excellence, 23

CRIM. JUST. 10 (Winter 2009) ............................. 14

Rules

Oklahoma Rule of Professional Conduct

3.3(a)(4)(B) .......................................................... 11

Oklahoma Rule of Professional Conduct

3.8, Cmt. [1]......................................................... 12

1

INTEREST OF AMICI CURIAE1

Amici are six legal scholars whose scholarship,

teaching, and professional service focus on legal ethics and professional responsibility, including the professional norms governing the work of trial lawyers in

general and of criminal prosecutors in particular.

Collectively, amici have authored well-respected and

widely cited scholarship on legal ethics. In particular,

amici have written and/or lectured on the subject of

prosecutors’ professional duties. They are uniquely

well-suited to consider prosecutors’ professional conduct and how prosecutors should be regulated to promote their compliance with professional obligations.

Amici respectfully submit this brief to address

why it is important for this Court to reaffirm prosecutors’ constitutional obligation to correct their witnesses’ false testimony.

Amici’s names and professional affiliations are set

forth in the Appendix. Amici submit this brief in their

individual capacities.

SUMMARY OF ARGUMENT

This death penalty case raises a vital question regarding a prosecutor’s constitutional obligation to correct the false testimony of a key witness for the State.

The decision of the Oklahoma Court of Criminal Ap-

1 No counsel for any party has authored this brief in whole

or in part, and no person other than amici or their counsel have

made any monetary contribution intended to fund the preparation or submission of this brief. Pursuant to Rule 37.2, amici

provided timely notice of intent to file an amicus curiae brief to

the parties’ counsel of record.

2

peals (“OCCA”)—holding that due process was not offended by the prosecution’s failure to correct its key

witness’s false testimony on direct examination—creates uncertainty about the extent of prosecutors’ responsibility in such circumstances. If left uncorrected, the OCCA decision will not only erode prosecutorial obligations, but also exacerbate confusion

percolating in the lower courts about the scope of this

Court’s holding in Napue v. Illinois, 360 U.S. 264

(1959), that the Constitution requires prosecutors to

rectify their witnesses’ false testimony.

The OCCA rejected Richard Eugene Glossip’s due

process claim notwithstanding the state Attorney

General’s confession of error. To reach that result, the

state court assumed that the prosecution’s remedial

obligation is limited in several respects, and is not implicated when the witness’s false testimony may not

be deliberate; when the falsehood may not be outcome-determinative; or when the defense might have

asked follow-up questions to expose the falsity of the

witness’s testimony. The state court’s decision was

wrong. The exceptions to a prosecutor’s duty of candor created by the OCCA are inconsistent with the

truth-seeking function of the trial process and with

the constitutional due process principles described in

Napue.

The decision below countenances a constitutional

violation that draws into question the integrity of the

verdict in this case. Further, it misdirects prosecutors

about their responsibilities under the Constitution

and the rules of professional conduct that derive from

it, to the detriment of fair and reliable verdicts in fu-

3

ture cases. This Court should grant certiorari and reverse the state court’s decision to make it clear that

the integrity and fairness of criminal proceedings unequivocally require prosecutors to rectify false testimony that is relevant to any issue the jury will decide.

FACTUAL AND PROCEDURAL BACKGROUND

The facts regarding the prosecution’s failure here

to correct false testimony are straightforward.

The prosecution’s key witness, Justin Sneed, murdered the owner of the motel where he worked. To

avoid a death sentence, Sneed agreed to testify that

Glossip, the motel’s manager, hired him to commit the

murder. The State’s case hinged on the credibility of

Sneed’s story. 2004 Trial Vol. 15, 73:8–10, 98:2–42,

154:11–155:7, 156:7–8, 157:21–2573:8–10, 98:2–4. At

Glossip’s trial in 2004, Sneed was the only witness to

offer direct evidence of Glossip’s alleged role in the

murder. The State argued that Sneed had no reason

other than Glossip’s influence to commit the murder.

Id. at 68:3–5. The sole death-penalty aggravator in

this case was murder for remuneration. The sole evidence for this consisted of Sneed’s testimony in the

guilt phase. To this day, Glossip asserts his innocence.

At the trial, the State elicited testimony on direct

examination from Sneed about whether he was medicated in jail after his arrest. Sneed testified: “When I

was arrested I asked for some Sudafed because I had

a cold, but then shortly after that somehow they

ended up giving me Lithium for some reason, I don’t

know why. I never seen no psychiatrist or anything.”

Pet. App. 267a.

4

That testimony was false, as the prosecution—but

not the defense—was aware. The prosecution had interviewed Sneed on October 22, 2003, and memorialized what Sneed told them in handwritten notes.

These notes, stored in “Box 8” of the District Attorney’s case file, included the phrases: “lithium?”, “Dr.

Trumpet?” (referring to Oklahoma County Jail Psychiatrist, Dr. Lawrence “Larry” Trombka), “tooth

pulled?”, and “the nurse’s cart record discrepancies v.

Mr. Sneed’s jail permanent record.” Pet. App. 101a,

110a, 269a. An Oklahoma County Sheriff’s medical

information sheet from 1998 only made public in 2023

confirms that Sneed was diagnosed by a state psychiatrist as having a bipolar disorder for which he was

prescribed lithium.

Neither Sneed’s bipolar disorder diagnosis nor his

treatment was disclosed to the defense pre-trial, during trial, or during the appeals. In fact, the evidence

in Box 8 was not released to Glossip’s attorneys until

January 27, 2023, nearly two decades after the interview.

When Sneed was examined by the prosecution at

trial, defense counsel did not have the opportunity to

correct his false testimony about his bipolar disorder

diagnosis or treatment because that information,

known only to the prosecution, was improperly withheld from the defense. The jury was thus left with the

false impression that Sneed was placed on lithium as

a mistake and that he had no mental health issues

that could have contributed to the murder or affected

his testimony or his recollection of events. The jury

was misled about why Sneed was administered lithium and kept in the dark about his lie on the stand.

5

The truth would have undermined Sneed’s credibility

as a witness and supported an alternative theory of

the case, viz., that Sneed committed the murder because he was experiencing bipolar disorder symptoms

exacerbated by methamphetamine use. 2004 Trial

Tr. Vol. 15, 151:8–24.

Two independent investigations subsequently conducted at the request of members of the state legislature and Attorney General Drummond recently determined that the prosecution had knowingly withheld

the relevant information memorialized in the 2003 interview of Sneed. And the investigations determined

that that information, if disclosed, would have undermined the prosecution’s theory that Glossip commissioned the murder.

In 2023, shortly after learning that the prosecutors had (1) knowingly withheld this impeachment

material and (2) let Sneed’s false testimony go uncorrected, Glossip sought a new trial based on these deficiencies and other errors, including the improper

suppression of evidence of Sneed’s psychiatric treatment in violation of Brady v. Maryland, 373 U.S. 83

(1963), and its progeny.

In its response to Glossip’s petition, the State confessed error regarding the prosecution’s knowing failure to correct its key witness’s false testimony, relying

principally on this Court’s decision in Napue, which

overturned a conviction where the prosecution failed

to correct its witness’s false statement about receiving

no consideration for testifying. The State also cited

cumulative errors in the prosecution of Glossip (many

of which also related to Sneed’s credibility and impeachment evidence). Pet. App. 153a. One such error

6

was the prosecutor’s violation of the rule of sequestration by supplying other witnesses’ testimony to Sneed

the day before he took the witness stand and reversed

his prior account of the murder. Id. 124a. Another

was the pre-trial destruction of evidence, including

the motel’s financial records, which were relevant to

the State’s theory that embezzlement motivated Glossip to commission the manager’s murder. Id. 153a.

Based on the State’s own independent investigation and the Attorney General’s thorough review of

the complete record, the state Attorney General asked

for a new trial, acknowledging that the prosecution’s

constitutional violations and Sneed’s material misstatements were reasonably likely to have led to the

jury’s guilty verdict. 2 But the OCCA rejected the

State’s confession of error. Despite suggesting that

Glossip’s claims were time-barred, Pet. App. 11a,

16a–17a (¶¶ 17, 26–27), the OCCA proceeded to the

merits and offered that the State’s admission of error

was “not based in law or fact.” Id. 15a (¶ 25). To reach

its remarkable conclusion that there was no Napue

violation by the prosecutor, the OCCA speculated,

without record support, that “[i]t is likely [defense]

counsel did not want to inquire about Sneed’s mental

health due to the danger of showing that he was mentally vulnerable to Glossip’s manipulation and control.” Id. 16a–17a (¶¶ 27–28). The OCCA concluded

that Sneed’s testimony “was not clearly false,” again

2 The Attorney General’s confession of error on behalf of the

State was consistent with this Court’s observation in Young v.

United States, 315 U.S. 257, 258 (1942): “The public trust reposed in the law enforcement officers of the Government requires that they be quick to confess error when, in their opinion,

a miscarriage of justice may result from their remaining silent.”

7

speculating with no record support that “Sneed was

more than likely in denial of his mental health disorders.” Id. 17a (¶ 28).

Additionally, the OCCA suggested that the defense had a responsibility to uncover the State’s failure to correct Sneed’s false testimony, observing: “[defense] counsel did not inquire further [into Sneed’s denial of having been seen by a psychiatrist].” Id. 16a–

17a (¶¶ 27–28). The report cited by the court disclosed neither that Sneed had been seen by a psychiatrist nor that he had been diagnosed with bipolar

disorder. Id.

Finally, the OCCA concluded that the “evidence

[was] not material under the law” because evidence of

Sneed’s mental health treatment probably “would not

have” changed the jury’s verdict. Id. 17a (¶ 28). This

conjecture, made without an evidentiary hearing or

factual support in the current record, gave no weight

to the Attorney General’s contrary conclusion that evidence of Sneed’s mental illness would have both

made it more likely than not that he committed the

murder on his own, not for hire, and provided an alternative theory to the State’s case as well as undermined his credibility as a witness. 3 Further, the

OCCA did not consider whether, if the prosecution

had made the requisite disclosure, the jury could have

been influenced by the fact that Sneed was caught lying about his mental health treatment. The OCCA

3 The Tenth Circuit has held that mental health evidence

that goes to a witness’s credibility and memory recall of events

is exculpatory and impeachment material. See Browning v.

Trammell, 717 F.3d 1092 (10th Cir. 2013).

8

did not consider that the prosecution allowed an unsupported and false narrative to be created at trial

when the truth would have directly impugned the veracity of the State’s key witness and the State’s “but

for Richard Glossip” theory of the case. In minimizing

the significance of Sneed’s falsehood, the state court

assessed this evidence in isolation rather than together with other withheld evidence that it had previously found to be immaterial.

ARGUMENT

I.

PROSECUTORS HAVE AN UNQUALIFIED CONSTITUTIONAL DUTY TO CORRECT FALSE TESTIMONY THAT IS RELEVANT

Due process forbids the state to contrive a conviction through the presentation of false testimony. See

Mooney v. Holohan, 294 U.S. 103, 112 (1935) (due process, “in safeguarding the liberty of the citizen against

deprivation through the action of the state, embodies

the fundamental conceptions of justice which lie at

the base of our civil and political institutions,” and

precludes “depriving a defendant of liberty through a

deliberate deception of court and jury by the presentation of testimony known to be perjured”). The violation is not excused simply because the prosecutor

did not deliberately elicit the false testimony. In Napue, the Court recognized that constitutional error occurs “when the State, although not soliciting false evidence, allows it to go uncorrected when it appears.”

Napue v. Illinois, 360 U.S. 264, 269 (1959).

The Court’s determination in Napue that the prosecution must correct its witnesses’ false testimony

9

was unqualified. Prosecutors must correct their witnesses’ false testimony regardless of its subject—

whether it bears directly on the defendant’s guilt or

innocence, or relates only to the witness’s credibility—if it is “in any way relevant”:

It is of no consequence that the falsehood bore

upon the witness’ credibility rather than directly

upon defendant’s guilt. A lie is a lie, no matter

what its subject, and, if it is in any way relevant

to the case, the district attorney has the responsibility and duty to correct what he knows to be

false and elicit the truth. . . . That the district

attorney’s silence was not the result of guile or

a desire to prejudice matters little, for its impact was the same, preventing, as it did, a trial

that could in any real sense be termed fair.

Id. at 269–70 (emphases added and quotation omitted). As the Court explained, misleading the jury

about a witness’s credibility violates due process even

if credibility may seem to have only marginal importance:

The jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such

subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life

or liberty may depend.

Id. at 269.

Napue requires a new trial so long as the false testimony could have affected the jury’s judgment. Id.

at 271. That standard of review traces its roots to

10

Mooney, as the Court explained in United States v.

Agurs, 427 U.S. 97 (1976):

[T]he Court has consistently held that a conviction obtained by the knowing use of perjured

testimony is fundamentally unfair, and must

be set aside if there is any reasonable likelihood

that the false testimony could have affected the

judgment of the jury. . . . [T]he Court has applied a strict standard of materiality [in a line

of prior cases], not just because [those cases] involve prosecutorial misconduct, but more importantly because they involve a corruption of

the truth-seeking function of the trial process.

Agurs, 427 U.S. at 103–04 (emphasis added). Napue

violations are thus not further reviewed for harmless

error: the finding of constitutional error already entails consideration of the materiality of the false testimony. See United States v. Bagley, 473 U.S. 667,

679–80 (1985) (“Although this rule is stated in terms

that treat the knowing use of perjured testimony as

error subject to harmless-error review, it may as easily be stated as a materiality standard under which

the fact that testimony is perjured is considered material unless failure to disclose it would be harmless

beyond a reasonable doubt.”).4 And this Court is not

4 See also Kyles v. Whitley, 514 U.S. 419, 435 (1995) (“[O]nce

a reviewing court applying Bagley has found constitutional error

there is no need for further harmless-error review. Assuming,

arguendo, that a harmless-error enquiry were to apply, a Bagley

error could not be treated as harmless, since ‘a reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different,’ necessarily

11

bound by the state court’s determination in assessing

the significance of the constitutional violation, but rather must review the record independently. Napue,

360 U.S. at 271–72; see also Bagley, 473 U.S. at 680.

II.

EROSION OF NAPUE OBLIGATIONS

WOULD UNDERMINE THE LEGAL PROFESSION’S ETHICAL RULES

The obligation to correct false testimony that is

imposed on prosecutors as a matter of constitutional

law has also been imposed on all lawyers as a matter

of professional ethics. For Oklahoma trial lawyers,

the Oklahoma Rules of Professional Conduct as they

existed in 2004 obligated lawyers to promptly inform

the tribunal when they learned that a person other

than their client has offered false evidence. 5 Rule

3.3(a)(3) of the Oklahoma Rules of Professional Conduct, as amended in 2008, states:

A lawyer shall not knowingly offer evidence

that the lawyer knows to be false. If a lawyer,

the lawyer’s client, or a witness called by the

lawyer, has offered material evidence and the

lawyer comes to know of its falsity, the lawyer

shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal.6

entails the conclusion that the [violation] must have had ‘substantial and injurious effect or influence in determining the

jury’s verdict.’” (citations omitted)).

5 Oklahoma Rule of Professional Conduct 3.3(a)(4)(B)

(adopted in 1988).

6 Importantly, the reference to “material evidence” in this

rule is not meant to incorporate the concept of materiality in the

12

Other states have similar or identical rules derived

from Rule 3.3(a)(2) of the ABA Model Rules of Professional Conduct.7

While all lawyers must adhere faithfully to this

unequivocal obligation as an ethical no less than constitutional matter, prosecutors have heightened duties. A prosecutor “has the responsibility of a minister

of justice” which “carries with it specific obligations to

see that the defendant is accorded procedural justice.”

Oklahoma Rule of Professional Conduct 3.8, Cmt. [1];

see also Cone v. Bell, 556 U.S. 449, 469 (2009) (“Although the State is obliged to ‘prosecute with earnestness and vigor,’ it ‘is as much [its] duty to refrain from

Brady line of cases, which hold that a conviction will not be reversed unless exculpatory or impeachment evidence withheld by

the prosecution would likely have affected the trial’s outcome. In

contrast to Brady contexts, the term here is meant to exclude

only trivial falsehoods. It has the same meaning in this model

professional conduct rule as in others. For example, ABA Model

Rule of Professional Conduct 3.3(a)(1) requires a lawyer to “correct a false statement of material fact or law previously made to

the tribunal by the lawyer,” and Model Rule 4.1(a) forbids a lawyer from “mak[ing] a false statement of material fact or law to a

third person.”

7 The ABA adopted its current version of Model Rule

3.3(a)(2) in 2002. The ABA’s prior version of this rule, adopted

in 1983 and in Oklahoma in 1988, provided: “If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures.” The ABA’s earlier professional code, the Model Code of Professional Responsibility, which had also been adopted in Oklahoma in 1969, had an

equivalent provision, Disciplinary Rule 7-102(B)(2), which provided: “A lawyer who receives information clearly establishing

that . . . [a] person other than his client has perpetrated a fraud

upon a tribunal shall promptly reveal the fraud to the tribunal.”

Napue pre-dated both of these.

13

improper methods calculated to produce a wrongful

conviction as it is to use every legitimate means to

bring about a just one.’” (citing Berger v. United

States, 295 U.S. 78, 88 (1935)); ABA Criminal Justice

Standards for the Prosecution Function, Standards 31.4(a) (4th ed. 2017) (“In light of the prosecutor’s public responsibilities, broad authority and discretion,

the prosecutor has a heightened duty of candor to the

courts and in fulfilling other professional obligations.”). Prosecutors’ obligations include, at the very

least, the longstanding and unqualified constitutional

obligation not to allow false testimony to “go uncorrected when it appears.” Napue, 360 U.S. at 269; see

also Prosecution Function, supra, Standard 3-6.6(c)

(“During the trial, if the prosecutor discovers that

false evidence or testimony has been introduced by

the prosecution, the prosecutor should take reasonable remedial steps. If the witness is still on the stand,

the prosecutor should attempt to correct the error

through further examination. If the falsity remains

uncorrected or is not discovered until the witness is

off the stand, the prosecutor should notify the court

and opposing counsel for determination of an appropriate remedy.”).

In determining the scope of both prosecutors’ and

defense lawyers’ obligations under constitutional provisions, this Court and lower courts often find guidance in professional norms.8 But the American Bar

8 See, e.g., Nix v. Whiteside, 475 U.S. 157, 166–71 (1986) (re-

ferring to “accepted norms of professional conduct” establishing

the “special duty of an attorney to prevent and disclose frauds

upon the court”); United States v. Young, 470 U.S. 1, 7–9 (1985)

(referring to ABA professional conduct codes and Criminal Jus-

14

Association (“ABA”) and state courts, in adopting and

interpreting professional conduct rules, are also influenced by this Court’s constitutional decisions.9 For

example, while some States’ professional conduct

rules require prosecutors to disclose information “that

tends to negate the guilt of the accused” regardless of

whether the evidence is “material,”10 other state supreme courts have incorporated a materiality requirement into their version of the professional conduct

rule so that it coincides with prosecutors’ due process

obligation under Brady and its progeny. 11 Because

tice Standards in determining prosecutor made improper arguments); Strickland v. Washington, 466 U.S. 668, 688 (1984)

(“Prevailing norms of practice as reflected in American Bar Association standards and the like, . . . are guides to determining

what is reasonable, but they are only guides.”); see generally

Martin Marcus, The Making of the ABA Criminal Justice Standards: Forty Years of Excellence, 23 CRIM. JUST. 10 (Winter 2009)

(discussing the relevance of the ABA Criminal Justice Standards).

9 For example, the ABA amended its Prosecution Function

Standards to accord with this Court’s decision in Jones v. Barnes,

463 U.S. 745 (1983), which held that, in a criminal case, an appellate lawyer was not obligated to make every nonfrivolous argument that the client requested. Likewise, the ABA amended

its Model Rules of Professional Conduct to accord with this

Court’s decision in Nix.

10 See ABA Model Rule of Professional Conduct 3.8(d), and

state rules derived from it; see also ABA Standing Comm. on

Ethics & Prof’l Resp., Formal Op. 09-455 (2009).

11 Oklahoma is one such State. State ex rel. Okla. Bar Ass’n

v. Ward, 353 P.3d 509 (Okla. 2015) (holding that a prosecutor’s

professional duty to disclose exculpatory or mitigating evidence

or information is co-extensive with Brady); see also, e.g., Matter

of Kutzrock, 192 A.D.3d 197, 209–10 (N.Y. App. Div. 2020) (reviewing conflicting views of whether state rules derived from

15

these ethical obligations are moored to constitutional

anchors, an erosion of the constitutional standard of

candor risks impairing the ethical one.

Moreover, prosecutors sometimes assume that

their ethical obligations are no more demanding than

their constitutional obligations. Based on the OCCA’s

decision, they may wrongly assume that they may decline to correct false testimony if, in their judgment,

the witness may not have intended to lie, the truthful

testimony would not necessarily result in an acquittal, or the defense will have an opportunity to attempt

to rectify the false testimony through cross-examination. Clarifying prosecutors’ constitutional obligations will help ensure prosecutors satisfy their ethical

ones in criminal proceedings across the country.

III.

THE OCCA DECISION IS AT ODDS WITH

NAPUE AND WIDENS CONFUSION IN

THE LOWER COURTS

The OCCA’s decision is wrong and out of step with

the majority of courts that properly follow Napue’s unqualified directive. Constitutional due process does

not hinge on the motivations of the lying witness, the

importance of the witness’s testimony, or defense

counsel’s ability to assert the perjury to the jury. See,

e.g., United States v. Foster, 874 F.2d 491, 495 (8th

Cir. 1988) (“The fact that defense counsel . . . failed to

correct the prosecutor’s misrepresentation is of no

consequence. This did not relieve the prosecutor of

her overriding duty of candor to the court, and to seek

justice rather than convictions.”); Gomez v. Comm’r of

ABA Model Rule 3.8(d) are coextensive with or codify Brady, or

whether the rules impose distinct obligations on prosecutors).

16

Correction, 243 A.3d 1163, 1168, 1174–76 (Conn.

2020) (applying Napue “[r]egardless of the lack of intent to lie on the part of the witness” and even when

defense counsel has notice of the truth (quotations

omitted)); Birano v. State, 426 P.3d 387, 413–14

(Haw. 2018) (noting that “a prosecutor’s constitutional duty to correct testimony is triggered even

when a witness’s testimony is ‘at best misleading’” on

an issue related to witness’s credibility (quotations

omitted)); People v. Wiese, 389 N.W.2d 866, 869 (Mich.

1986) (“It is inconsistent with due process when the

prosecutor, although not having solicited false testimony from a state witness, allows it to stand uncorrected when it appears, even when the false testimony

goes only to the credibility of the witness.”).

And as courts have equally recognized, when the

prosecution knowingly elicits relevant false testimony, the conviction should be reversed so long as the

prosecution’s misconduct could have affected the

jury’s verdict. See, e.g., Kyles, 514 U.S. at 435; Bagley,

473 U.S. at 679–80. Most lower federal courts apply

this standard. The Ninth Circuit has held, for example, that a conviction must be overturned if “‘there is

any reasonable likelihood that the false testimony could have affected the judgment of the jury.’”

Dow v. Virga, 729 F.3d 1041, 1048 (9th Cir. 2013)

(quoting Agurs, 427 U.S. at 103); Hayes v. Brown, 399

F.3d 972, 984 (9th Cir. 2005) (“When the Supreme

Court has declared a materiality standard, as it has

for this type of constitutional error, there is no need

to conduct a separate harmless error analysis.”). The

D.C. Circuit has described the standard as “quite easily satisfied” and a “veritable hair trigger for setting

17

aside the conviction.” United States v. Butler, 955

F.3d 1052, 1058 (D.C. Cir. 2020) (quotations omitted).

Some lower court decisions have questioned

whether Napue establishes an unqualified obligation

to take remedial measures when, as here, the prosecution knows its witness’s relevant testimony is false.

For example, the Seventh Circuit has held that prosecutors do not necessarily have a constitutional duty

to correct their witnesses’ false testimony when it is

elicited by defense counsel on cross-examination or

when defense counsel already knows the truth, and

that prosecutors’ constitutional duty to correct false

testimony may be excused when the prosecutor does

not rely on the false testimony or when defense counsel presents contrary evidence. Long v. Pfister, 874

F.3d 544, 548–49 (7th Cir. 2017) (holding these applications had not been clearly established by the Court

for purposes of collateral review). The Second Circuit

has suggested that a Napue violation may be excused

if the defense counsel had notice of the false testimony

but did not correct it due to “strategic or tactical omissions.” Jenkins v. Artuz, 294 F.3d 284, 295 (2d Cir.

2002). And some courts have (improperly) overlaid a

harmlessness analysis on their constitutional review.

See, e.g., Gilday v. Callahan, 59 F.3d 257, 268 (1st Cir.

1995) (applying a two-step analysis, the second step

of which asked “whether the perjured testimony in

fact had a substantial and injurious influence on the

jury’s verdict”); Carter v. Mitchell, 443 F.3d 517, 537

(6th Cir. 2006) (noting that, even if there had been a

Napue violation, “any constitutional error would have

been harmless”).

18

But the OCCA’s decision blows past those incremental qualifications of Napue, definitively truncating prosecutors’ obligation to correct false testimony.

Under the OCCA’s approach, prosecutors need pay little attention to the truth or falsity of their witnesses’

testimony. So long as the witness’s lie may have been

non-deliberate, or might not affect the verdict, or

could be unearthed on cross-examination by a defense

lawyer willing and able to explore theories with no evidentiary basis, or could conceivably be left uncorrected as a strategic defense decision, then the prosecutor may leave the falsehood undisturbed. Such a

qualified obligation to correct false testimony defies

Napue and is wrong.

The OCCA’s approach is also impracticable—a

prosecutor may not know, in the heat of a trial, the

motivations of the witness, what impact the falsehood

will have on the jury, or whether a defense lawyer will

expose the falsehood. Prosecutors’ ethical and constitutional obligations should not turn on the fortuity of

how those facts later develop.

The OCCA was equally incorrect in upholding the

conviction because it believed that there was not “a

reasonable probability that the result of the proceeding would have been different had Sneed’s testimony

regarding the use of lithium been further developed

at trial.” Pet. App. 17a (¶ 28) (emphasis added). As

explained, Napue’s standard of review asks only

whether the error could have affected the verdict. If

so, the conviction is unconstitutionally tainted by the

false testimony.

Here, the prosecution’s errors constitutionally

tainted the conviction because if the prosecution had

19

corrected Sneed’s false testimony, the verdict could

have been different. The evidence at issue created

doubt about Sneed’s credibility and thus the veracity

of his testimony, as well as the plausibility of the

State’s theory of the case: “[w]hat reason above and

beyond the reasons of Richard Glossip did Justin

Sneed have to kill Barry Van Treese?” 2004 Trial Tr.

Vol. 15, 68:3–5, 151:21–22. It provided an alternative

explanation for the murder, viz., that Sneed’s conduct

was caused by his own mental illness, not Glossip.

Given the evidence that methamphetamine use can

cause manic episodes, paranoia, and even violent behavior in an individaul with bipolar disorder, Pet.

App. 104 (¶ 10), the correction of Sneed’s lie would

have permitted the jury to conclude that Sneed’s bipolar disorder and methamphetamine use triggered

the attack. 12 Setting aside the likely impact of the

OCCA’s erroneous decision on future trials, prosecutors, and defendants, review by this Court is warranted in this case for this capital defendant in order

to correct the OCCA’s serious error in summarily concluding the jury would have been unmoved by the

truth.

CONCLUSION

This Court should grant certiorari in this case to

reinforce that prosecutors have an unqualified obliga-

12 Based on its misunderstanding of the obligation under Na-

pue, the Oklahoma Court also erred by concluding that Glossip

could have raised this claim earlier. Pet. App. 16a (¶ 26). Until

January 27, 2023, Glossip’s counsel did not have a basis to assert

that the prosecution knowingly failed to correct Sneed’s false testimony on direct examination.

20

tion to correct their witnesses’ false testimony. Clarifying prosecutors’ obligation is a matter of national

importance, given the premium this Court places on

the integrity of criminal proceedings, the important

role of prosecutors in ensuring fairness in those proceedings, and the influence that this Court’s constitutional decisions exert on prosecutors’ and courts’ understanding of the related professional norms. The

constitutional principles embodied in Napue are important to ensuring that individuals charged with

crimes receive a fair and reliable process for adjudicating guilt or innocence. Reaffirming these principles is imperative not only to prevent erroneous denials of liberty but, as this case reflects, to prevent accused individuals from being unfairly deprived of

their lives.

21

Respectfully submitted,

BRUCE A. GREEN

150 West 62nd Street

New York, NY 10023

(212) 636-6851

bgreen@law.fordham.edu

MEAGHAN VERGOW

Counsel of Record

JOHN J. LAPIN

O’MELVENY & MYERS LLP

1625 Eye Street, N.W.

Washington, D.C. 20006

(202) 383-5300

mvergow@omm.com

KELLY KAMBOURELIS

O’MELVENY & MYERS LLP

400 South Hope Street

18th Floor

Los Angeles, CA 90071

June 5, 2023

APPENDIX

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TABLE OF CONTENTS

Page

APPENDIX A: List of Amici Curiae ....................... 1a

1a

APPENDIX A

LIST OF AMICI CURIAE1

Nora Freeman Engstrom

Ernest W. McFarland Professor of Law

Co-Director, Deborah L. Rhode Center on the Legal

Profession

Stanford Law School

Bruce A. Green

Louis Stein Chair of Law

Director, Stein Center for Law and Ethics

Fordham University School of Law

Peter A. Joy

Henry Hitchcock Professor of Law

Washington University in St. Louis School of Law

W. Bradley Wendel

Edwin H. Woodruff Professor of Law

Cornell Law School

Ronald F. Wright

Needham Y. Gulley Professor of Criminal Law

Wake Forest University School of Law

Ellen C. Yaroshefsky

Howard Lichtenstein Professor of Legal Ethics

Maurice A. Deane School of Law, Hofstra University

1 Institutional affiliations are provided for identification pur-

poses only. The views expressed in this brief do not reflect the

views of the institutions with which amici are affiliated.